Open Decision Ledger · Civil obligations & remedies
Dividing a liable member's damages debt among all members by contribution
Supreme Court, Feb. 12, 2026, 2024Da295135 (judgment)
Case name: 손해배상(기)[조합에 대하여 손해배상책임을 지는 조합원에게 조합관계 종료 후 다른 조합원이 잔여재산으로서 그 손해배상채권에 관한 분배를 청구하는 경우 분배비율의 산정이 문제 된 사건]
Official text on the National Law Information Center
Question
Where a partner becomes liable to the partnership in damages for breach of the duty of care or a tort and the partnership relationship has ended so that only the liquidation step of distributing the partnership property remains, may another partner claim that partner's share of the damages debt, in proportion to the claimant's contribution, as a distribution of the residual assets?
Holding
Yes. Where the partnership relationship has ended, no partnership business is left over beyond distribution, and only the liquidation step of distributing the partnership property remains, the damages debt owed by the member who caused the loss is itself a residual asset, and the other partners may claim the money answering to their own share by contribution ratio. And that debt must be divided in proportion to the contribution amounts of all members, the liable member included; the court below erred by leaving the liable defendant's contribution out of the calculation.
Summary of the holding, verbatim
다른 조합원은 조합에 손해를 가한 조합원을 상대로 손해배상채권액 중 자신의 출자가액 비율에 의한 몫에 해당하는 돈을 청구하는 형식으로 조합관계의 종료로 인한 잔여재산의 분배를 청구할 수 있다.
Unofficial English translation
Another member may claim the distribution of the residual assets arising from the termination of the association relationship in the form of claiming, against the member who caused damage to the association, an amount of money corresponding to his or her share in proportion to the amount of his or her capital contribution out of the claim for damages.
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 피고 패소 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed insofar as it ruled against the defendant, and this part of the case is remanded to the Seoul High Court.
Form of the test
Elements stated Stated in the decision
사업의 종료 등으로 조합관계가 종료되고 달리 조합의 잔여업무가 남아 있지 않은 상황에서 조합재산의 분배라는 청산절차만이 남게 되었다면
Unofficial English translation
In a situation where the association relationship is terminated by the completion of the business or otherwise, and no remaining business of the association is left, if only the liquidation procedure consisting of the distribution of the association's assets remains
Factors
- 조합의 조합원이 선량한 관리자의 주의의무 위반 또는 불법행위 등으로 인하여 조합에 대하여 손해배상책임을 지게 되는 경우
- 사업의 종료 등으로 조합관계가 종료되고 달리 조합의 잔여업무가 남아 있지 않은 상황에서
- 조합재산의 분배라는 청산절차만이 남게 되었다면
- 조합에 손해를 가한 조합원을 상대로 손해배상채권액 중 자신의 출자가액 비율에 의한 몫에 해당하는 돈을 청구하는 형식으로
Unofficial English translation
• Where a member of an association becomes liable for damages to the association for a breach of the duty of care of a good manager or a tort (unlawful act), etc.
• in a situation where the association relationship is terminated by the completion of the business or otherwise, and no remaining business of the association is left
• if only the liquidation procedure consisting of the distribution of the association's assets remains
• in the form of claiming, against the member who caused damage to the association, an amount of money corresponding to his or her share in proportion to the amount of his or her capital contribution out of the claim for damages
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2019. 7. 25. 선고 2019다205206, 205213 판결(공2019하, 1654)
Unofficial English translation
Supreme Court Decision 2019Da205206, 2019Da205213 decided July 25, 2019 (Gong 2019 Ha, 1654)
Decisions referred to
대법원 2019. 7. 25. 선고 2019다205206, 205213 판결(공2019하, 1654)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
May a partnership agreement validly provide that a member who has caused loss to the partnership forfeits that member's share of the residual assets altogether?
The judgment of the Seoul High Court on remand will show how the contribution ratio of all members, the liable one included, is set against the profit-sharing ratios in the agreement. Any amendment to Article 681, Article 707 or Article 724(2) of the Civil Act, or a later decision departing from Supreme Court Decision 2019Da205206, 205213, would call for this entry to be read again.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-24
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “May a partnership agreement validly provide that a member who has caused loss to the partnership forfeits that member's share of the residual assets altogether?” vs Independent “How should the distributable amount be calculated when the partnership also has outstanding debts or competing claims among partners?”
The primary asks whether an agreement can exclude the liable partner from distribution, while the independent asks how outstanding debts or competing claims affect the distributable amount.
다른 조합원은 조합에 손해를 가한 조합원을 상대로 손해배상채권액 중 자신의 출자가액 비율에 의한 몫에 해당하는 돈을 청구하는 형식으로 조합관계의 종료로 인한 잔여재산의 분배를 청구할 수 있다.Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgment of 26 September 2024 (2023Na2040206), held that the defendant breached the duty of care owed under the partnership agreement by handling the partnership's fund management and omitting revenue reports, and thereby caused the partnership a loss of KRW 27,878,502 in tax penalties and tax accountant costs. On the distribution it took the profit-sharing ratios in the agreement, 20% each for plaintiffs 1, 2, 3 and the defendant and 10% each for plaintiffs 4 and 5, but applied them only to the plaintiffs and excluded the defendant's share, ordering the defendant to pay each of the first three KRW 6,969,625 and each of the other two KRW 3,484,812 with interest.
Supreme Court standard: The Supreme Court found no error on the loss itself: the finding that the defendant breached the duty of care, and the assessment of the loss arising from the omitted revenue reports, did not exceed the bounds of free evaluation or misapply the law on the occurrence and quantification of the partnership's loss. On the distribution it held that the damages debt, being the partnership's residual asset, must be divided in proportion to the contribution amounts of all members, the defendant's included. Because the court below left the defendant's contribution out and distributed only on the plaintiffs' contributions, it misread the law on calculating the distribution of residual assets and affected the outcome, so the part in which the defendant lost was reversed and remanded to the Seoul High Court on the unanimous opinion of the participating Justices.
Distinguishing conditions
- A partnership whose relationship has not yet ended, or in which partnership business is still left over beyond the distribution of property.
- A claim in which the partnership's residual assets do not consist of a damages debt owed by another member, so that there is no such debt to divide.
- A distribution calculated without setting the liable member's contribution back into the denominator, since the Court required the division to follow each member's contribution ratio, the liable member included.
Record verification notes
First separate the loss finding from the distribution finding, since the Supreme Court affirmed the first and reversed only the second. Then collect the contribution amount of every member, the liable member included, and set it against the profit-sharing ratios in the agreement, which here stood at 20% for the defendant as well and are a different measure. Confirm on the file that no partnership business remained when the claim was brought, and note the rounding the court below applied to whole won.
From the official text
Points at issue
조합의 조합원이 선량한 관리자의 주의의무 위반 또는 불법행위 등으로 조합에 대하여 손해배상책임을 지게 되고, 사업의 종료 등으로 조합관계가 종료되어 조합재산의 분배라는 청산절차만이 남게 된 경우, 다른 조합원이 조합에 손해를 가한 조합원을 상대로 손해배상채권액 중 자신의 출자가액 비율에 의한 몫에 해당하는 돈을 청구하는 형식으로 잔여재산의 분배를 청구할 수 있는지 여부(적극)
Unofficial English translation
Where a member of an association becomes liable for damages to the association for a breach of the duty of care of a good manager or a tort (unlawful act), etc., and the association relationship is terminated by the completion of the business or otherwise, leaving only the liquidation procedure consisting of the distribution of the association's assets, whether another member may claim the distribution of the residual assets in the form of claiming, against the member who caused damage to the association, an amount of money corresponding to his or her share in proportion to the amount of his or her capital contribution out of the claim for damages (affirmative)
Summary of the holding
조합의 조합원이 선량한 관리자의 주의의무 위반 또는 불법행위 등으로 인하여 조합에 대하여 손해배상책임을 지게 되는 경우, 사업의 종료 등으로 조합관계가 종료되고 달리 조합의 잔여업무가 남아 있지 않은 상황에서 조합재산의 분배라는 청산절차만이 남게 되었다면 다른 조합원은 조합에 손해를 가한 조합원을 상대로 손해배상채권액 중 자신의 출자가액 비율에 의한 몫에 해당하는 돈을 청구하는 형식으로 조합관계의 종료로 인한 잔여재산의 분배를 청구할 수 있다.
Order
원심판결 중 피고 패소 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed insofar as it ruled against the defendant, and this part of the case is remanded to the Seoul High Court.
Provisions referred to
민법 제681조, 제707조, 제724조 제2항
Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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